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APPLIED HISTORY SERIES 



EDITED BY BENJAMIN F. SHAMBAUGH 
VOLUME n NUMBER 1 



Scientific Law-making 



BY 




BENJ. F. SHAMBAUGH 





REPRINTED FROM VOLUME TWO OF THE IOWA 
APPLIED HISTORY SERIES PUBLISHED AT IOWA CITY 
IN 1914 BY THE STATE HISTORICAL SOCIETY OF IOWA 



u 



SCIENTIFIC LAW-MAKING 



Kt^ssm^ 



IOWA APPLIED HISTORY SERIES 

EDITED BY BENJAMIN F. SHAMBAUGH 



SCIENTIFIC LAW-MAKING 



BY 
BENJ. F. SHAMBAUGH 



PUBLISHED AT IOWA CITY IOWA IN 1914 BY 
THE STATE HISTORICAL SOCIETY OF IOWA 



NOV 20 1914 






SCIENTIFIC LAW-MAKING 

From an examination of the journals of the two 
houses it appears that 28,134 bills and joint resolu- 
tions have been introduced into the General Assembly 
of iowa since the organization of the State in 1846 ; 
and the same records show that during this period, 
which covers sixty-eight years, 7738 bills and joint 
resolutions were enacted into law and placed upon the 
statute books of the Commonwealth. During the ses- 
sion of 1913 the Thirty-fifth General Assembly alone 
entertained the introduction of 1297 bills and joint 
resolutions, while it enacted 410 into laws and per- 
mitted 887 to fall by the wayside. In other words, it 
appears that in Iowa there are about one-third as 
many enactments as there are bills and joint resolu- 
tions introduced : two-thirds of all measures proposed 
fail to reach the statute books. 

The task of wisely sifting and perfecting the meas- 
ures presented to the General Assembly requires a 
degree of skill and intelligence that is not exceeded in 
any other department of the government. Indeed, it 
is conceded that the law-making or policy-determin- 
ing function requires for its proper exercise a knowl- 
edge so varied and extensive that satisfactory 



6 APPLIED HISTORY 

legislation would seem impossible unless performed 
by ''minds trained to the task through long and la- 
borious study. ' '* And yet the official register of this 
State shows that comparatively few members of the 
legislature have had training ''through long and 
laborious study", or the advantage of years of experi- 
ence in the business of making laws. Furthermore, 
the General Assembly of Iowa meets but once in two 
years for a session of about ninety or one hundred 
days ; and there is nothing in the law or in the salaries 
provided which suggests that our legislators are ex- 
pected to devote much time to the study of the prob- 
lems of legislation when the legislature is not in 
session. Evidently under existing conditions there is 
no department of government which is in greater 
need of expert assistance than the legislature when it 
undertakes to make laws — or the voters when, oper- 
ating under the initiative and referendum, they 
assmne the function of legislating. 

There is much criticism of both the volume and 
the quality of State legislation. But a constructive 
view of the situation suggests the very practical ques- 
tion, how can legislators be aided in their work and 
equipped for the difficult task of making laws for the 
Commonwealth? Or, how may the people, acting 



*See John Stuart Mill's Bepresentative Government, the chapter on 
Representative Bodies. 



^ SCIENTIFIC LAW-MAKING 7 

under the forms of direct legislation, be guided in 
initiating and voting upon public measures'? Upon 
the possibility of a satisfactory answer to this ques- 
tion depends the improvement of legislation by repre- 
sentative assemblies and still more the success of 
direct legislation by the people. 

Under existing conditions legislators and voters 
alike may be aided and guided in the making of laws 
in three ways: (1) through legislative reference 
work; (2) through scientific research; and (3) 
through expert bill-drafting. The consistent use of 
these agencies by those engaged in the business of 
making laws would constitute a distinctive method of 
legislation which may properly be characterized as 
Scientific Law-making. 

LEGISLATIVE EEFERENCE 

In the first place scientific law-making demands 
the discovery and collection of data and information 
relative to the subjects of contemporary legislation. 
The materials to be collected include statute laws, 
codes, proposed bills, and judicial decisions ; reports 
of public officials, boards, commissions, and com- 
mittees; reports of special investigations and sur- 
veys; books, pamphlets, periodicals, and bulletins 
containing both popular and scientific discussions of 
public questions ; reference lists and bibliographies ; 
miscellaneous leaflets and clippings. In the hands of 



8 APPLIED HISTORY 

competent library assistants these materials are 
classified, arranged, catalogued, and indexed ; special 
reference lists and bibliographies are sometimes com- 
piled ; and finally briefs may be made on some of the 
more difficult subjects. 

It is clear that the collection, classification, cata- 
loguing, indexing, listing, and briefing of materials is 
largely a library function which can best be per- 
formed by trained reference librarians in connection 
with a State Library or possibly a State University 
Library. As a rule the State Library is found to be 
the logical agency for handling this important work 
— which should be carried on through a department, 
bureau, or division specially organized and equipped 
for the purpose. Thus back of legislative reference 
work are usually the vast resources and equipment of 
a State Library. 

In Iowa legislative reference work was first of- 
ficially recognized in 1907 by the Thirty-second Gen- 
eral Assembly when $150 was appropriated for ''the 
purchase of legislative references to and indexes of 
current legislation" and $1000 annually was allowed 
the State Librarian's office for ''one legislative and 
general reference assistant." With this encourage- 
ment the work has been carried on at the State House 
in the rooms of the Law Department of the State 
Library under the direction and supervision of Mr. 



SCIENTIFIC LAW-MAKING 9 

A. J. Small. Fortunately, Mr. Small's successful ex- 
perience as law librarian and Ms practical knowledge 
of the needs of legislators have combined to make the 
legislative reference work in Iowa most efficient and 
helpful — excelling in certain directions the more 
pretentious activities in other States. There is, 
however, a distinct need of more definite organization 
for the work, which should be supported by more ade- 
quate appropriations. 

SCIENTIFIC EESEAECH 

It is not enough, however, to discover, collect, and 
systematically catalogue data and information rela- 
tive to the subjects of contemporary legislation: 
alcoves of statutes and public documents, shelves of 
reports, heaps of pamphlets, and exhaustive bibli- 
ographies at times seem only to increase the embar- 
rassments and difficulties of the law-makers. What 
is needed also is a careful sifting of materials, a 
critical analysis of data, a scientific interpretation of 
facts. And so, scientific research becomes a necessary 
agency in unlocking these vast stores of legislative 
information. 

In dealing with questions of legislation scientific 
research involves (1) the careful and impartial in- 
vestigation of all the sources of information; (2) the 
expert interpretation of all the facts; (3) the expert 
definition of the standards of regulation, of legisla- 



10 APPLIED HISTORY 

tion, and of administration ; and (4) tlie application 
of these standards of legislation and administration 
to existing needs and conditions. 

Manifestly research is not only the most vital but 
also the most difficult and exacting phase of Scientific 
Law-making. To properly sift the materials, analyze 
the data, and interpret the facts requires much time 
and no little training: it is the business of experts. 
Moreover, it takes an experienced researcher any- 
where from one to six months to work through a 
single subject. Since it is impracticable for many 
members of the State legislature to engage in such 
extensive scientific researches, this work should be 
done by trained experts — frequently in advance of 
the session. 

In Iowa the State Historical Society has in recent 
years assumed the function of legislative research — 
that is, this Society has undertaken systematic scien- 
tific researches in the field of contemporary legisla- 
tion and has published the results of such researches 
under the title of ''Applied History." Moreover, in 
1913 the General Assembly voted appropriations for 
the continuation of these researches and publications. 

Back of the Applied History contributions to cur- 
rent legislation are the more exhaustive researches of 
the State Historical Society of Iowa in the political, 
economic, and social history of the Commonwealth. 



SCIENTIFIC LAW-MAKING 11 

u 

Indeed, sucli volumes as the History of Lahor Legis- 
lation in Iowa, by E. H. Downe}^, the History of 
Taxation in loiva, by John E. Brindlej", the History 
of Work Accident Indemnity in lowa^ by E. PI. 
Downe}^, the History of Road Legislation in Iowa, by 
John E. Brindley, the History of Poor Relief Legis- 
lation in Iowa, by J. L. Gillin, the History of Social 
Legislation in Iowa, by John E. Briggs, and a score of 
monographs on the political history of Iowa are the 
forerunners of the Iowa, Applied History Series. 

EXPEET BILL-DRAFTING 

The final stage in the process of Scientific Law- 
making is the expert drafting of bills. All the legis- 
lative reference in the world combined with scientific 
research will not produce satisfactory laws if bills are 
not properly drawn. Bill drafting is not a simple 
matter : it requires a technical knowledge of law and 
of judicial decisions, an acquaintance with methods 
of accomplishing the revision and amendment of 
statutes, an appreciation of the importance of pre- 
cision in the use of terms and phrases, as well as great 
skill in the use of the English language. It would be 
amusing if it were not so serious and embarrassing to 
give illustrations of legalized blunders resulting from 
poorly drawn statutes. 

For the sake of uniform and scientific legislation 



12 APPLIED HISTORY 

the General Assembh^ should make provision for ex- 
pert bill-drafters for the assistance of legislators or 
others engaged in proposing legislation. These ex- 
pert bill-drafters conld be attached to the staff of the 
legislative reference department or bureau. Such 
men are difficult to find, but their services are invalu- 
able. They would save the time of the legislator and 
prevent subsequent litigation. Moreover, carefully 
and accurately drawn measures would prevent that 
flood of amendments which inevitably follows the 
enactment of poorly worded statutes. 



L«2/ °^ CONGRESS 



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